Summary: Mrs X complained the Council did not put alternative provision in place for her child, Y, when Y became too unwell to attend school. The Council was at fault in how it decided whether to arrange alternative provision for Y and for delay in issuing Y’s Education, Health and Care Plan. This caused Mrs X avoidable frustration and upset for which the Council will apologise and pay her £500. The Council will also identify what actions it needs to take to ensure it retains information about its actions and decision-making in relation to a child’s education when a member of staff leaves their role.

The complaint

1. Mrs X complained the Council did not put alternative provision in place for her child, Y, when Y became too unwell to attend school. Mrs X said this impacted on Y’s quality of life and development and caused her and Y’s father stress and difficulty.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
4. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
5. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

6. I have considered:
• all the information Mrs X provided and discussed the complaint with her;
• the Council’s comments about the complaint and the supporting documents it provided; and
• the relevant law and guidance and the Ombudsman's guidance on remedies.
7. Mrs X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

Special educational needs

8. Children with special educational needs may have an Education, Health and Care (EHC) Plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. Section F sets out the child’s special educational provision and section I ‘names’ the school or type of school the child will attend.
9. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says where a council receives a request for an EHC assessment it must decide whether to agree to the assessment within six weeks. A decision not to assess is appealable to the SEND (Special Educational Needs and Disabilities) Tribunal.
10. If the SEND Tribunal decides the council must carry out an EHC assessment and if, following the assessment. the council decides to issue an EHC Plan it must do so within a maximum of 14 weeks.
11. There is also a right of appeal to the SEND (Special Educational Needs and Disabilities) Tribunal about the special educational provision and placement named in a child’s EHC Plan. This appeal right is only engaged once the final EHC Plan has been issued.
12. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)

Alternative provision

13. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. (Education Act 1996, section 19). We refer to this as section 19 or alternative provision.
14. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)
15. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
16. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says that if specific medical evidence, such as that provided by a medical consultant, is not quickly available, councils should “consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child”.
17. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. Out of school, out of sight? published July 2022
18. We made six recommendations. Councils should:

• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence when making decisions;
• choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision;
• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases;
• work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary; and
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore councils should retain oversight and control to ensure their duties are properly fulfilled.

What happened

19. Mrs X’s child, Y, has conditions which caused her difficulties including with anxiety, mood, social interactions and communication. Y is registered to attend a mainstream school (school A).
20. In late January 2023, Mrs X told the Council Y was not attending school full time and she was worried about her academic progress. Mrs X asked the Council what support was available to help Y. The Council did not respond.
21. In February 2023, Mrs X asked the Council to carry out an EHC Needs Assessment for Y. She said Y was unable to do a full day at school and when she was in school, she was not able to go in the classroom.
22. The Council issued a decision not to assess Y in late March, which Mrs X appealed.
23. In May 2023, school A sent the Council information on the support it had given to Y and on her special educational needs, to inform the appeal process. School A said:
• Y had been having difficulties since autumn 2022 but had gotten worse in November 2022 and again in January 2023;
• Y was unable to go into the classroom so sat at a desk outside the learning support office;
• Y had a daily check in from a trusted member of staff and weekly social, emotional and mental health learning team sessions;
• Y received one-to-one support from a teaching assistant for three hours per week. School A felt this had been useful and helped Y engage better with learning;
• despite that support, Y’s attendance had worsened and her ability to engage in learning had deteriorated overall. The school noted “as a school we have put in place the support that we are currently able to do so”; and
• Y’s attendance was 68% and she was often collected by a parent by lunchtime.
24. In mid-July 2023, the SEND Tribunal upheld Mrs X’s appeal and directed the Council to carry out an EHC Assessment.
25. In September 2023, Y stopped attending school. The Council was aware of this change in Y’s attendance.
26. At some point in the autumn term, Y had some sessions with the Council run Complex Communication Team (CCT), which is dedicated to supporting children with complex communication needs.
27. School A referred Y to a Council decision-making panel to see if it would arrange support from its Hospital Education Service (HES). At the end of term, the panel heard Y’s case. It found the HES did not have space to help Y and recommended school A refer Y to a different alternative provision service.
28. The Council issued Y’s EHC Plan in early December 2023, and named school A in section I. Mrs X appealed section I to the SEND Tribunal.
29. I asked the Council to evidence how it had decided whether it needed to arrange alternative provision for Y. It said:
• based on the information from school A in May 2023, it was satisfied the school was providing sufficient support to Y, so it did not change it decision to refuse an EHC assessment; and
• it had ongoing conversations with school A between September and December 2023, but does not have evidence of this because of staff leaving the Council’s employment.

Findings

Alternative provision

30. Under section 19 of the Education Act 1996, councils must arrange suitable education for a child in its area if that child is out of school because of exclusion, illness or other reasons, where they would not receive a suitable education otherwise.
31. The Council was at fault in how it decided whether to arrange alternative provision for Y. I find this for the following reasons.
• Mrs X first told the Council Y was not attending full-time in January 2023. She reiterated that information in her assessment request in February. There is no evidence the Council considered that information at the time, and whether it meant it should arrange alternative provision.
• The Council told me it decided the information school A provided in May 2023 indicated it had put sufficient support in place, so Y did not need an EHC assessment. This was the wrong test for deciding if Y needed alternative provision. For alternative provision, the question is whether there is suitable education available and accessible by the child.
• The Council says it worked closely with school A between September and December 2023 to support Y. It is not automatically fault if a council relies on a child’s school to re-integrate them into class, or to arrange alternative provision. However, we expect councils to be able to evidence they have maintained appropriate oversight over the school’s efforts and been prepared to arrange provision directly, and without delay, if needed. This is particularly important when a child is entirely out of school, as Y was by this time.
• There was some Council involvement with Y in the autumn term; its CCT did some sessions with Y, and at the end of the year, its panel decided Y should have some alternative provision arranged by school A. However, the Council has no evidence of its contact with school A during the autumn term. Without more evidence of the Council’s involvement, and given Y was fully out of education, I am not persuaded the Council properly decided whether it should arrange alternative provision at the start of term, or that it did not delay when it agreed Y needed alternative provision at the end of term.
32. However, I cannot say, even on balance, that had the Council acted without fault, it would have arranged alternative provision, what that provision would have looked like, or when it would have been in place by. This is because it is ultimately for the Council to decide when a child needs alternative provision and how to meet that need. The Ombudsman can only look at whether the Council made its decision properly. Nonetheless, the fault caused Mrs X significant upset and frustration which the Council should remedy.
33. Mrs X appealed the Council’s decision to name Y’s current school in their December 2023 EHC Plan. As set out above, the Ombudsman cannot consider a matter which was appealed, or which is closely connected to a matter that was appealed. Mrs X does not feel school A can meet Y’s needs, which is why Y is unable to attend school and in need of alternative provision. The matters are closely linked and therefore I cannot investigate whether the Council was at fault for not providing alternative provision from December 2023 onwards.

EHC Plan

34. The Council issued its decision to refuse to assess Y for an EHC Plan within the six-week timescale set out in the regulations. However, when the Tribunal ordered the Council to assess Y, it should have done so and issued the final EHC Plan by mid-October 2023. It did not so until early December, six weeks later. This was fault and meant Mrs X was delayed receiving her right to appeal the content of the Plan to the SEND Tribunal. This caused Mrs X avoidable frustration.
35. I cannot say the fault meant Y missed out on special educational provision they should have had. This is because delivery of the provision in the EHC Plan is dependent on Y attending school A. Any loss of special educational provision is too closely linked to Mrs X’s appeal on the naming of school A in the Plan so I cannot investigate it.

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Agreed action

36. Within one month of the date of my final decision, the Council will take the following actions.
1. Apologise to Mrs X for the frustration and upset she experienced due to the Council’s failure to properly consider if it should arrange alternative provision for Y and the delay in issuing Y’s EHC Plan. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance in making the apology I have recommended.
2. Pay Mrs X £500 in recognition of her injustice.
3. Identify what steps the Council needs to take to ensure it has access to information relating to its actions and decision-making around a child’s education when a member of staff leaves their role.
37. The Council will provide us with evidence it has complied with the above actions.

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Final decision

38. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice and prevent reoccurrence of this fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman